Do We Really Want Judges Determining What Art 'Says'?

from the freedom-of-expression dept

There was a very big legal ruling last week having to do with copyright in the art world. It involves the artwork of Richard Prince, an appropriation artist, who took some photographs from Patrick Cariou's book Yes, Rasta, of various Rastafarians, and then used them in various paintings. There were a bunch of photographs used -- this is the comparison shot that has been used in a lot of the press coverage:

That's Cariou's photo on the left, and Prince's painting on the right. I'll admit that, personally, I'm not that impressed. But I'm really not sure what my art criticism should have to do with anything. Yet, many others seem to want to jump in and have their own criticisms of the art determine whether or not this sort of thing should be allowed. And that's troubling from the perspective of letting artists create what moves them, rather than setting up laws over what is and is not allowed to be art.

In this case, despite plenty of other lawsuits that found appropriation art to be legal, the judge ruled that this is infringing, leading many to predict a pretty massive shakeup in the modern art world, where this kind of appropriation art has become pretty common. What strikes me as most troubling is that the judge's decision appears to rest mainly on what the artist's stated intent was in creating these paintings, and deciding that since he was neither commenting on the original works nor the subjects of the images, it's no longer a protected fair use. That seems questionable. Why should the intent of the artist matter one way or the other? As law professor Peter Friedman notes in the link above:

One take away from this is that any time an artist is sued, they should just insist that the artwork they created was "commenting" on the original work, even if it wasn't. But why is that the standard? The fair use standard doesn't say anything about intent, and judging the true intent of an artist seems like a really dangerous game. Some, like Charlie Finch, are pointing out how this is a dangerous slippery slope under which judges are determining the value of artwork:

Judge Batts implied a kind of slippery slope by observing that Prince had not cut up or sectioned Cariou's pictures sufficiently, making an observer wonder whether a Mimmo Rotella standard of radical pictorial transformation would be the minimum standard for fair use.

Either way, having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts' standard.

The reality is that the judge here seems to have gone beyond what fair use has said in the past, in creating this new standard. As Greg Allen warns this is a massive limiting of fair use:

If it stands, it would have major, sweeping, and stifling effects.

Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell.

That last point is also notable. It wasn't just Prince who was sued, but also the art gallery that displayed his works, which was found guilty of direct infringement for displaying and selling the works, and then also found guilty of vicarious and contributory infringement because it "had the right and ability (and perhaps even responsibility) to ensure that Prince obtained licenses." That seems like a pretty big stretch as well.

In the end, I'm sure people will stick up for this ruling because they don't think what Richard Prince did was very good or particularly artistic. Yet, clearly, many in the art world disagree with you, as his paintings sell for extraordinarily high prices. And, in the end, shouldn't that be the determining factor? If people are willing to consider this artwork and pay for it as artwork, then what's the problem? On top of that, it seems like Cariou should have been able to capitalize on this attention himself, increasing the value of his own work.

And... speaking of Cariou's work... one question I have in all of this is how much is Cariou paying the Rastafarians that he photographed? After all, isn't he making use of their works as well? Either way, Prince has made it clear that he's appealing and has hired some powerhouse lawyers to help him out. Of course, he had to appeal quickly, because under the original ruling, all of his paintings at issue in this lawsuit were to be destroyed.

Others are delighted at Prince's discomfiture. I am troubled. Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince's "appropriation" added ten million dollars worth of value to a pile of books. Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

You should click through to read the entire Dowd piece, which includes multiple images to back up what he has to say. In the end, his point is really the key one: no one is being harmed here. No one is being fooled. Art is a form of speech, and even if you personally don't think much of it, or are upset about how the artist goes about it, is that really something for a court to decide?

In the context of music, we were just discussing how an appropriation artist like "Kutiman" was creating new artwork by pulling from YouTube. And, even some of the staunchest copyright defenders in our comments said what he was doing was fine, trying to distinguish his "creative" appropriation with "consumptive" appropriation by others. Well, here's another case of "creative" appropriation. So why isn't it allowed?

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Springtime for Hitler was art. Originally. So were the others. How do you need a judge for that? Those are originals. The judge would be there for you, trying to rip off those originals and make money off that, claiming fair use; when clearly it's not.

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What is worse I think is calling the thing on the right a "painting", when it appears to be at best a collage and some fairly horrible work done by someone who is clueless with photoshop. It certainly doesn't appear to be a painting, and it certainly isn't at all original. It doesn't even make it up to the level of original.

The only thing they guy has a hope on is to claim parody, because the resulting "painting" is a joke.

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What is worse I think is calling the thing on the right a "painting", when it appears to be at best a collage and some fairly horrible work done by someone who is clueless with photoshop. It certainly doesn't appear to be a painting, and it certainly isn't at all original. It doesn't even make it up to the level of original.

The only thing they guy has a hope on is to claim parody, because the resulting "painting" is a joke.

As expected, you focused on your subjective opinion of the artwork.

Mike, why do you fall for this stuff over and over again?

Um. Your reading comprehension seems to get worse week by week. I specifically said that I'm not at all impressed by the work, and I agree, from my perspective, it's pretty weak.

But, clearly there's a market for it, and people like it. So why are you complaining about it?

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"Your reading comprehension seems to get worse week by week."

I think it's actually that you write better pieces, and by that I mean you are more verbose and try to hedge off these types of ridiculous arguments in your postings week by week. That leaves these trolls no choice but to get crazier and crazier in how they attack you...

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Mike, I am not taking a subjecting opinion of the piece. I am looking at what was required to create it, which was not much. It is hard to consider something art when there is nothing going on.

Your reading comprehension seems to get worse week by week. I specifically said that I'm not at all impressed by the work, and I agree, from my perspective, it's pretty weak.

My reading comprehension is just fine, thanks. What I am pointing out isn't the subjective qualities of the piece (which you seem to think I am focused on) but rather than you seem to fall for very marginal arguments of what is art or what is copyright violation. Being impressed with the world isn't really important (except as I mentioned in judging the efforts that went into it), but looking at the almost complete duplication of the original picture, it's pretty hard to see much original going on here. Which makes me wonder why you think it is anything other than just a direct copy, plus 3 minutes effort (and actually, a cut out of another picture, likely also not used with permission).

It really doesn't matter if there is a market for it. As someone else mentioned, you could take something, add the word COW on the back of it, and call it "new". But is it really?

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What you are saying here is that art is defined by the effort necessary to recreate it. Yes, you might be able to reproduce exactly what Prince did in a few minutes. But art is not just the physical actions, it is the effort and time spent to decide what to do and how to do it.

So while it might be trivial to reproduce this piece of art, it may very well not have been trivial to create it. And isn't the disparity between the effort to create art and reproduce it the thing that has copyright maximalists in a tizzy?

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Oh come on please. I don't like the paytards any more than the next guy, but that is one weak argument.

I could turd on a piece of paper, take it to a gallery and promptly be ejected from the premises by security, if not arrested. On the other hand, Damien Hirst could turd on a different piece of paper, take it to the same gallery and have all the art critics come in their pants.

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Oh come on. All you are saying is "I could make that", which is the first argument that complete philistines pull out against every off-kilter artist from Warhol to Rothko to Pollock.

I don't always "get" that kind of art either, but when I see just how meaningful it is to so many people who live and breathe art, I have the humility to believe that they understand something I don't.

Yes, you could do it. But you wouldn't have done it. And Prince did do it. Effort is not the point of art, choice is.

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Mike, I am not taking a subjecting opinion of the piece. I am looking at what was required to create it, which was not much.

Seems like a lot more was required to create that painting than the original photograph.

Being impressed with the world isn't really important (except as I mentioned in judging the efforts that went into it), but looking at the almost complete duplication of the original picture, it's pretty hard to see much original going on here. Which makes me wonder why you think it is anything other than just a direct copy, plus 3 minutes effort (and actually, a cut out of another picture, likely also not used with permission).

Similarly, the original photograph was a complete duplication of the original scene. It's pretty hard to see much original going on here. Which makes me wonder why you think it's more important than Prince's work, which actually took that scene and did something with it?

It really doesn't matter if there is a market for it. As someone else mentioned, you could take something, add the word COW on the back of it, and call it "new". But is it really?

Sure seems new to me. But the bigger question, really, is whether or not that did any harm to the original work? I don't see how it did.

And yet you wish to stomp out a form of expression, because you don't think it's "new" enough? Really?

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Seems like a lot more was required to create that painting than the original photograph.

Let's see. Photographer has to travel to a place, find a subject, get him in context and take that image, carefully framing it, dealing with light, time of day, color, and all sort of other things in it's composition.

The "painting" appears to be nothing more than a copy, with a copy of part of someome else's photograph as the "guitar" and a few squiggles from photoshop. I think I know which one took more effort, and I know which one is original and which one is just a rip off.

Similarly, the original photograph was a complete duplication of the original scene. It's pretty hard to see much original going on here.

So you are are suggesting that a photograph is not unique and isn't art? Wow. I think you need to call the mothership to beam you back to earth. You have truly lost it.

And yet you wish to stomp out a form of expression, because you don't think it's "new" enough?

It isn't to stomp it out. It is to suggest the the copycat "artist" might want to work with materials that have been approved for use by the true artists, and not just randomly taking other people's work without permission and claiming it as their own. if the "artist" was a little more original, or a little more considerate of others, his work, however lame we find it, could exist without being "stomped out". You are attempting to set up a black and white choice here where reality allows for many other avenues for this to go. It isn't yes or no, but perhaps "do it the right way". I think some people would call your question a strawman, no?

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Obviously, with attributed would come the requirement for permission to use. Obviously, if he had asked the rights owner if he could use them photograph(s) in question, the problem would be resolved. Either he could, or he could move on to another project, perhaps something somewhat more creative.

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"Obviously, with attributed would come the requirement for permission to use"

Obviously, I can't see the obvious there because I don't see how attribution would necessarily be linked to permission. For example, someone could copy something and attribute it, but without permission.

Given that I don't know of a necessary link between permission and attribution, I was wondering what bearing it had on the issue.

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Let's see. Photographer has to travel to a place, find a subject, get him in context and take that image, carefully framing it, dealing with light, time of day, color, and all sort of other things in it's composition.

Painter has to look through photos, find a subject, decide on a new context to put it in and modify that image, carefully choosing minimalist additions for the effect he wants, dealing with elements of design like balance and contrast and all sorts of other things in its composition.

So you are are suggesting that a photograph is not unique and isn't art? Wow. I think you need to call the mothership to beam you back to earth. You have truly lost it.

Can't have it both ways. The fact is art always involves elements of appropriation from somewhere, so you can either believe no art is original or all art is. Accept it, or I swear to god I am going to go full-Goldblum on that mothership of yours.

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but looking at the almost complete duplication of the original picture, it's pretty hard to see much original going on here.

You may be right - and if the judge had used your reasoning to come to his conclusion that would have been fine - but you miss the point.

The judge didn't use the degree of duplication as his criterion - he used the declared intent of the artist.

It doesn't matter which side of the argument you take, this should still trouble you. Doesn't it bother you that (apparently) Prince could have "got away with it" by simply declaring an intent to parody?

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Boring... This again? He clearly stole the other guy's picture... why are you making a huge deal out of this Mike?

The judge didn't use your simplistic logic. If he had that would have been less troubling - at least we would have known where we stood. The problem is that the judge is using value judgements to determine infringement and that sets a dangerous precedent. In simple terms infringement should be determined by objective factors, noot things like quality or intent.

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"If your intent is clearly to rip off someone else's material, then how is that not infringement?"

Because it shouldn't matter what the intent is if the use of a work is fair. In law I understand there is the concept of a guilty mind, but it usually applies to crimes where it matters whether you were aware of the consequences of your actions. In copyright the consequences of your actions aren't in question, as if you claim fair use then the consequences of your actions are the same as if you claimed you were trying to rip the copyright holder off.

What would happen if you copied something but were ignorant of copyright law and could neither claim fair use nor intent to infringe? It would seem that the court would to have to judge whether ignorance of the law is a valid defence, despite the fact that if you weren't ignorant of the law then you might have claimed fair use.

On the whole, I cannot see the point of applying the concept of a guilty mind to this case. I would be interested if someone could point me to another law that uses the concept in the same way.

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Intent should play a role. If your intent is clearly to rip off someone else's material, then how is that not infringement?

This is a different type of intent. The use of intent in criminal cases centres around situations in which a bad consequence has indisputably happened (someone has been injured or killed) and the court is trying to determine whether the plaintiff intended the outcome or whether it was just an accident.

In copyright law in general (and in the present case in particular) what is under dispute is whether the bad thing has happened at all In that case it make no sense at all to use intent as a criterion. It's like saying that because the attacker didn't intend injury - therefore no injury can have occurred. That is nonsense.

In copyright cases one should look at whether the plaintiff has actually suffered any damage. Knowing the intentions of the defendant doesn't help at all with that.

Derivitive?

Actually I agree that this is not derivative enough...

To use the Kutiman (which I love and totally agree with as fair use) analogy, this would be the equivalent of taking a Metallica song and during the solo dubbing over me saying "Hey look at the cow!" but leaving 90% of the song in tact, AND THEN TRYING TO SELL IT!...

Kutiman basically sampled bits and pieces, even whole works, of posters to YouTube. As we've seen before, people who post their own uncopyrighted videos to youtube are basically submitting them to public domain-- as it should be. I still wouldn't look too kindly to someone who took an entire post to YouTube or any other way of submitting an artistic work to public domain, overlaying a small icon or snippit of audio, and then calling it copyrighted and trying to sell it.

Unfortunately, good luck trying to define what would be generally "acceptable" use of existing works-- even before we involve lawyers and copyright holders.

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"this would be the equivalent of taking a Metallica song and during the solo dubbing over me saying "Hey look at the cow!" but leaving 90% of the song in tact, AND THEN TRYING TO SELL IT!..."

Not really a close comparison. The entire media changed. This would be more akin to listening to a Metallica song and then transcribing it - with some errors and some modifications - onto a stone tablet with a chisel.

I'm not sure how I feel about doing that. I wouldn't - in part because I think most Metallica music is pretty bad, but I can see that some people would think that using their lyrics could be questionable - at least without attributing them. However, part of copyright is the idea that the use of the copy in some way takes away from the market for the original. Selling stone tablets (presumably for decoration) would be a completely different market than Metallica is selling in.

Back off of the song / tablet thing for a second and you get the original topic. A guy with some photographs to sell a book is using copyright to prevent the production and sale of paintings created based on these photographs. Did the paintings harm the book sales (probably the opposite), the the paintings harm the market for the photographs (once again, probably the opposite).

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Okay, take a Metallica album on vinyl, rip it to a CD, and write "cow" on the CD with a market. That is transformative, and the cow is obviously some sort of social commentary. So now do I have the rights to sell this as "art"?

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No but if you take the Metaliica album and replace every pronoun in the lyrics with the word cow your analogy might be a little better. And if you find someone who wants to buy your shitty cow song I say go ahead and sell it, im sure you disagree.

If you took a metallica album burned it to cinders and used the ash to spell out the word cow, I might buy that. If its one of their newer albums you will certainly be adding value.

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You are still pretty far off from what happened. Selling music is still selling music. Selling a book is REALLY DIFFERENT than selling a painting.

And going from your cow example. Take a Metallica CD and melt it into a small statue of a cow and I think you have transformed it - even if it still has the album art and technically still has the music. Someone shopping for a Metallica CD is not going to be dissuaded by my new statue.

Intent means everything. Two different people kill individuals, one does it while driving down the street and the victom runs out in front of their car, the other takes a gun and randomly walks up to someone and blows their head off.

Both are dead, should both go to prison? Should both go free? What is the difference? Pretty much intent.

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OK, so leaving the ad hominem attack out. Assuming intent matters so much, are you ready to accept that position when innocent infringement occurs? Or, is it like all of your other arguments, only a one-way street in your favor?

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Do you think intent matters in art? I don't.

Which is why instead of being an artist, and your life's work being creative and contributing to the betterment of art, you're a technerd with an MBA who runs a blog about piracy and things that dumb down art.

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Do you think intent matters in art? I don't.

Which is why instead of being an artist, and your life's work being creative and contributing to the betterment of art, you're a technerd with an MBA who runs a blog about piracy and things that dumb down art.

I see. So, intent matters in art. And what was the "intent" behind the top selling single last week?

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Intent is, in the end, meaningless. Sure, from an academic perspective the artists intent might have some value, but art is all about how it affects the audience (this includes movies, music, and the written word). The artist can say whatever they damn well please, but what matters in the end is what the audience thinks.

Any time an artist is asked what their intent was they should respond with, "My intent was to affect my audience." When asked what kind of effect they wanted to have on their audience, they should respond with, "I can't answer that. the only person who can answer that is the person experiencing my art."

The artist only has so much control over how their work is perceived, and because of this their intent becomes irrelevant (in time, if not immediately).

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Well, this geek is also a formally educated semi-professional classical musician, so let me give it a shot here.

The only intent for an artist, regardless of the medium, is that of expression. That expression can be of any number of things: emotional, political, social commentary, parody, etc...

Now, some artists specifically create for the purpose of soliciting public reaction; they like being controversial.

The problem with having any one person deciding what a piece of art 'says' is that even among artistic 'experts', you can (and will usually) get differing opinions, and they are just that: opinions.

And finally, all people are consumers of art, even those who don't create it. Just because they don't create art, doesn't mean they can't appreciate it and have opinions about it. If you are the AC I think you are, your entire livelihood depends on us 'stupid geeks' consuming your artists' work.

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I'm not trying to sound intelligent. I'm applying logic; which seems to be difficult for an art nerd such as yourself to understand.

The moment art is consumed by an audience it becomes subject to the opinion(s) of the audience, and the artists intent immediately becomes less important (to the audience if not to the artist himself).

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"Intent is, in the end, meaningless. Sure, from an academic perspective the artists intent might have some value, but art is all about how it affects the audience (this includes movies, music, and the written word). The artist can say whatever they damn well please, but what matters in the end is what the audience thinks."

Why?

Why is the audience so important?

This navel-gazing self-congratulatory 'Fans Rule!' attitude might seem obvious to you, but I am yet to see a compelling argument for it. Artists need an audience to get famous; they don't need an audience to make art.

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Artists need an audience to get famous; they don't need an audience to make art.

You are absolutely correct, and if the artist creates a work and keeps it to himself, then would there even be a controversy over whether this is "art" or not? No. But he did so there is.

So what causes the controversy? Is it the fact that there is an audience that interprets the art and sees some value in the work, or is it the artist's intent in creating the work?

It's a shame you seem to have ignored the rest of my post; specifically the end of it: The artist only has so much control over how their work is perceived, and because of this their intent becomes irrelevant (in time, if not immediately).

I think that, and your own post answers the question of why the audience is so important. The audience (your "fans") do rule because they determine if a piece of artwork becomes famous and can make a living off of art.

The moment art is consumed by an audience it becomes subject to the opinion(s) of the audience, and the artists intent immediately becomes less important.

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"I should probably remember to log in before posting next time..."

That's ok, I figured it out. ;)

"I think that, and your own post answers the question of why the audience is so important. The audience (your "fans") do rule because they determine if a piece of artwork becomes famous and can make a living off of art."

I know that the audience 'rules' from a commercial standpoint. But consider: does anyone above the age of 12 think that fame=quality? I mean, most adults that I know realize that there is more to, say, music than the celebrity status of it's creator. It is this 'more' that I am interested in, and it is neither increased nor diminished by the artist's fame or popularity.

Maybe it's because most (not all) of the music that I am interested in has never been popular. Maybe it's because I have heard one too many shallow twerps say that Bach is boring and only stupid old people like that shit. Maybe it's because I know that skimming any history of art or music or literature will reveal dozens of names of people whose work changed the nature of their chosen art form forever, but who still died in obscurity. But whatever the reason, I am really starting to get sick of hearing about the importance of the audience. Acknowledging their economic importance is one thing. Pandering to their bored impatience, and pretending that it is some sort of instinctive insight of vital epistemic import, is quite another.

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"In copyright cases one should look at whether the plaintiff has actually suffered any damage."

One of the points brought up in the trial as reported in the Wall Street Journal was:

"A gallery owner who had planned to exhibit the original Cariou photos balked after the Prince show because, as she told the court, 'she did not want to exhibit work which had been done already at another gallery.' Mr. Cariou's work hadn't just been lifted, the judge ruled, but 'usurped.'"

Thus, by that standard of copyright law, the original photographer had suffered damage as was ruled by the judge.

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Thus, by that standard of copyright law, the original photographer had suffered damage as was ruled by the judge.

Amazing! I guess it was bound to happen eventually. It's still a little questionable IMO to base a ruling on what the artist said he was trying to do. As Mike said, it just means many artists will now say "it's parody" or "it's commentary on the original" or whatever answer gets them aquitted. Many of course will not and will still give an honest answer (I hope).

Just one more problem that would be greatly mitigated by short copyright terms.

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That is all true, but not really relevant to this case. It doesn't have anything to do with how famous or valuable the art is. It's about whether the purpose of the art should affect a claim of fair use.

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"Intent means everything."

Does it?

Police has permission to use deadly force to neutralise a suspect that threatens human life. In those situations where deadly force is truly required, their intention when they shoot is pretty much killing the suspect. In fact, if I recall correctly, one of the shooting techniques calls for two shots on the torso and one on the head, which virtually guarantees a kill.

According to your simplistic view, that officer should be arrested, even though his actions may have saved dozens of hostages and his use of force was adequate.

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I actually agree with you, that intent shouldn't be a consideration in art. But if it is to be, the underlying premise for intent in both homicide and copyright should be the intent to cause harm. While his art is questionable, I don't think they've any reason to believe his intent was to cause harm.

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Police very rarely shoot to disarm. They want to disarm by threatening to fire, and if that fails and they start shooting, they're more or less shooting to kill.

My understanding is they aim for "center mass" or the torso. This gives the best chance of hitting the target and also the best chance of hitting something vital that will stop the threat, either through death or crippling injury. In rare cases a sniper might shoot a weapon out of someone's hand (yes it's real, I've seen videos of it happening), but that's by far the exception.

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Intent means everything. Two different people kill individuals, one does it while driving down the street and the victom runs out in front of their car, the other takes a gun and randomly walks up to someone and blows their head off.

Artistic intent and criminal intent are quite different concepts.

Transferring your analogy back to the subject of the post and you would have Richard Prince accidentally painting a picture that resembled the photograph vs deliberately copying it. That use of intent would be quite clear and untroubling - and also quite distinct from the present situation.

I am finally starting to understand the appropriation argument

I haven't really put a lot of thought into appropriation art, remixing, etc. But this post has finally made the argument for this kind of art clear. If I take your words and add to them my own interpretation, did I steal from you? Or did I expound on what you had to say? Art should be no different. It is one artist expanding on what another artist has done, adding his own interpretation. I can guarantee you the original artist didn't create his piece in a vacuum so why should the appropriation artists have to do that?

Re: I am finally starting to understand the appropriation argument

I haven't really put a lot of thought into appropriation art, remixing, etc. But this post has finally made the argument for this kind of art clear. If I take your words and add to them my own interpretation, did I steal COW!!!! from you? Or did I expound on what you had to say? Art should be no different. It is one artist expanding on what another artist has done, adding his own interpretation. I can guarantee you the original artist didn't create his piece in a vacuum so why should the appropriation artists have to do that?

This so perfectly proves it. If I had to pay for either of these two comments, I'd pay for the original, because the "COW" version is idiotic. We didn't need any government intervention; the market sorted it out. Maybe a few people chuckled at the "COW" version, and they are free to pay for that one.

As long as it is clear who is who, the market will decide where the money will go, and the market is always right.

Yes, but by definition, the COW version is "art", as unique as the original in it's own ways. It isn't about money, it's about art. It isn't paying that makes it art, just that it is art and protected.

More importantly, is the COW version original enough to qualify as a work? I did it in seconds (a few keystrokes). Is that enough?

The guy you are replying to had a point to make, and he made it. You had a point to make, and you made it by appropriating his post and making very minor changes. Both of these were valid things to say and your right to free speech means you can make your point even though it is just "stealing" the words of someone else and adding "COW".

This makes the point even better IMO. It took almost no work yet is totally transformative. It's clearly different from the original it's based on and not in any way a substitute for it.

Better yet, I don't know what this person's intent was in creating it, and it doesn't matter. So it also shoots down the intent argument. Bravo! Or, neener neener, depending on what you were going for. ;-)

Fantastic post! The AC took an original work that came before and modified it slightly to make a completely different expression (which, paradoxically, entirely nullified the point he was trying to make about how minor changes can't change the fundamental expression.)

That just shows that you don't understand art. I say that not because I think this is good art. I think it's crap. Crap art, to be sure, but it's still art (and it's still crap). But you seem to have this view that art has to be good to be art. I can write random words and call it writing. I can even call it poetry. That doesn't mean it's good writing, or good poetry. Everybody can draw. Not everybody can draw decently well. But just because no one but the drawer considers it worth anything doesn't mean it's no longer a drawing. Why do you think art has to have some glorious appeal to it in order to be called art? I can call this art without seeing any way in which doing so diminishes the great art by Michelangelo or Da Vinci or .

Again, it isn't about the "quality" (why we end up there again is amusing) but rather that there is no content. It is only a collage of 2 other works and a small amount of photoshop. There isn't much creative or new, so what part of it is really art? By this standards, anything is art.

We are talking about quality because you keep bringing it up but you don't seem to realize it. Look up almost any definition of art and you will find that what this guy did was art. It was, in my not so humble opinion, absolute garbage art, but it was still art.

I like the "fountain". I don't know exactly why, but I find it amusing. But all Duchamp did was take an already existing urinal and titled it "fountain". This guy is trying to do the same thing. He took already existing pictures and did a little photoshop job. We can argue about his photoshop skills, but I think that argument is missing the point. It doesn't matter whether or not he did a good job, as far as whether or not his work is art. He did it as art, and some people view it as art. It is art.

There isn't much creative or new, so what part of it is really art? By this standards, anything is art.

Something is art if its creator describes it as art. These days there is no other criterion. It may be very bad art but still art. Tracy Emin's bed, Damien Hurst's half animals, John Cage's silence all fall in the same category in my mind. (Although the Fast Show's "Jazz reworking of John Cage" was brilliant!)

Warhol

Warhol couldn't work today. I've been to his museum and while some of his work is great, much of it looks like Prince's painting. This ruling can't be right.

The way I see it, if Prince changed the image enough that people want to buy it over the original, then that proves it is transformative. Otherwise, Cariou could just sell his original. Let the free market decide, as long as there is no confusion.

It is similar to the difference between referencing a work and plagiarizing. If I take a paragraph from another writer and change a word in every sentence, it is not plagiarism.

Re: Warhol

I think the social mores of the situation would speak more in.the situation. Even if plagiarism is frowned upon, there are other factors at play than nicking the speech (words) of others. Personally, I might like the works of J. Maxwell and his mannerisms could show if I give a speech. So, everyone hearing may think I stole his words. The one-off effect may work in certain cultures, but most western ones have a strong preference for originality.

But I will say...

4 chan is going to be PISSED if someone comes in screaming about dmca notices and copyright takedowns of art...

Re: Re: Warhol

"You missed the point of much of Warhol's art, which was as much about context and content. "

Which brings us back to 'do we really want judges determining what art is?'.

"I hope you teacher things that when you hand in your next paper :)"

I'm unsure of the parent's point, but it seems worth noting that if they referenced the original as the base of their work then it wouldn't be plagiarism (although it may still fail for being unoriginal).

Re: Warhol

Warhol couldn't work then either. He was sued, multiple times, and settled every time. He, at least, was an honest thief who paid his debts to the people he stole from when he was called on it.

The ruling is absolutely correct (IANAL, and this is my opinion only) in that Prince's use of Cariou's work fails the tests of fair use conclusively. Don't like the law? Fine, work to change it and declare that photographers have no rights to their work at all if you feel that way...but as written and settled in precedent, the ruling is correct.

Waste of time...

I Agree, this whole things is a waste of time. I can't tell if judges are getting worse or if they are tired of thinking. Its a bad call and needs to be swiftly fixed, its obviously on a whim and its obvious he did it all by himself.

Determination of whats it's good for is unnecessary and just causes problems. Let alone, how many times great pieces were/have been used is boiling pots like family guy etc just for the unknowing to find out he did not create those bits ALL by himself is just as important.

Re:

No, actually, it is multiple users (there are about 20 active AC posters here) who happen to agree. I know, it's amazing, but some people don't actually bath in the techdirt koolaid, and are able to consider alternate points of view.

Re: Re:

No its not the disagreeing, thats cool I enjoy a good debate. There are certainly some ACs that don't agree that I would never imagine are THAT AC.

However there are quite a few that use the same non-arguments, rude one liners, flawed logic, horrible analogizes, and the whole "LOL, FUD, ASTROTURF, unsupported statement, duh." That it feels like one guy, it seems worse in a couple other posts from today but heres an example from this comments section:

"Why do you geeks think you can talk about art, and sound intelligent?

Go write some code, nerdboy, and leave the heavy lifting to those who were actually born with the gift of artistic talent."

"That being said, you couldn't even come up with your own statement. You fail.

And if the audience is you, we're so much better off with a judge."

"Really, you don't understand how analogies work? Sheesh. The point was that intent matters. The point was not that infringement is like killing. You're not too bright, are you?"

"Lol. No it didn't. Clearly we see a TD fanboy pattern emerging here again."

"I know, it's amazing, but some people don't actually bath in the techdirt koolaid, and are able to consider alternate points of view."

Different snowflakes, same hostile close minded tone.
Maybe it is just a whole bunch of assholes who can not back there argument with evidence and unique points of view instead of just insulting people who they don't agree with. Although after reading THAT AC's comments in every post for the last good long while, it really feels like the same person with maybe one AC i am wrongly attributing.

But whatever if you don't wanna be mistaken for an ignorant close minded asstroll raptorphile maybe you should come up with a name, be careful not to infringe. Dont worry I licensed mine from LucasArts.

Re: Re: Re:

there are about 20 active AC posters here"

I would be interested to know how you worked that out. Also, how many do you believe share your point of view

Since I actually know this, I can say with certainty that the original claim of 20 is flat out wrong. There are four very active ACs, who are generally easily distinguishable by their styles (amusingly, all four used to use names, but after their key points were debunked repeatedly, they all shifted to AC).

There are another 5 or so ACs who show up intermittently and take similar anti-Techdirt viewpoints.

So, at best, you could argue that there are 10, but that's a stretch. It's certainly not 10 active ones.

There are also a few named users who disagree with us, who I'm not including in this calculation.

The idea that there are 20 such active AC commenters is simply incorrect.

Re: Re: Re: Re:

Re: Re: Re: Re:

"There are four very active ACs, who are generally easily distinguishable by their styles"

I have trouble determining the differing styles, apart from perhaps the formatting that one seems to use. Usually if I notice something familiar it's because I'm having a feeling of deja vu; such as when someone argued about anonymous and pseudonymous. Generally I just accept that I can't tell the difference and limit inferences to stuff in the same thread.

All that said, it seemed obvious even to me that there aren't anywhere near twenty regular commenters making the same arguments anonymously.

re: Anonymous Coward

Anonymous Coward sure sounds like she or he has a real axe to grind about appropriation art since they are stalking every post by Masnick on techdirt that relates to that particular issue. Could it be possible he or she has an IP address from Jacksonville or the WSJ?
Nah, couldn't be.

Fundamental issue with the reasoning here...

"The fair use standard doesn't say anything about intent, and judging the true intent of an artist seems like a really dangerous game."

This is entirely incorrect or...worse...deliberately dishonest. In fact, the first test applied to determine fair use is entirely concerned with intent.

- Is Prince's theft and reuse 'intended' as commentary on Cariou's work? No, by Prince's admission in court his intent had nothing to do with commentary on Cariou.
- Is it 'intended' for commercial use? Do we have to go there?

Let's dispense with the intent issue, it's disingenuous at best. Support Prince in this matter if you must, but let's be clear at least that intent is not only a legitimate concern in this matter; intent is a critical concern.

The judge ruled, quite correctly, that the intent of the defendants was clear, unambiguous, and a violation of copyright not subject to protection under the fair use doctrine.

Re: Fundamental issue with the reasoning here...

In fact, the first test applied to determine fair use is entirely concerned with intent.

It's actually "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

So is there a difference between "purpose" and "intent"? I think you could argue that purpose could be decided without reference to the artist. For example, if the artist were unknown, one could still make some kind of determination of the use's purpose, though the artist's intent would be impossible.

Re: Re: Fundamental issue with the reasoning here...

@nasch

In this specific case, not wanting to get into a semantics session, I would suggest that purpose and intent can function as synonyms.

i.e. "Is the purpose of Prince's use of Cariou's images to serve as a commentary on them?" instead of "Is Prince's theft and reuse intended as commentary on Cariou's work?" or "Was the purpose of the work primarily commercial?" instead of "Is it intended for commercial use?"

In either use case, the answers are still clear an unambiguous; Prince himself states the use is not commentary, and it's most assuredly commercial (I think it's safe to say that the 16+ million in cash and trades is not an unintended consequence of Prince's deep drive to make important art.).

Re: Re: Re: Fundamental issue with the reasoning here...

In this specific case, not wanting to get into a semantics session, I would suggest that purpose and intent can function as synonyms.

No. They cannot. They are not synonyms at all. Purpose of the work is not about the intent of the artist, but the overall "purpose" of the work: is it art, is it reporting, etc.

There is nothing in the fair use standard that says that it needs to comment on the earlier work. That's made up. It is a part of the test for whether or not something is a parody, which is one way in which work may be fair use, but saying it must "comment on" the original work is a massive rewriting of fair use law.

In either use case, the answers are still clear an unambiguous; Prince himself states the use is not commentary, and it's most assuredly commercial

Being a commercial work does not exclude a fair use argument.

The judge here was wrong. Very wrong. And many lawyers all seem to agree that the ruling will likely be overturned on appeal.

Re: Re: Re: Re: Fundamental issue with the reasoning here...

No. They cannot. They are not synonyms at all. Purpose of the work is not about the intent of the artist, but the overall "purpose" of the work: is it art, is it reporting, etc.

Yes. They can. In a specific situation and context if two words have like meanings they are, in that instance, synonymous. In any event, I thought I specifically tried to avoid a semantics debate...so, on I merrily go.

For your reading pleasure, Title 17.107 of the US Code (a snip thereof, since the 4 pronged test is what we are dancing around here):

________________________
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
_______________________

You may continue to argue that "intent" and "purpose" are not synonymous as pertains to section (1) above, if you wish. If something is intended to be educational, it's purpose is to educate...if something is intended to be commercial, it's purpose is to...ok, I'll move on.

You are in fact correct in that a work which appropriates copyrighted material may not fail the fair use test solely due to its commercial nature, it is however, of significant importance as the rest of the test is applied to a work. I'll concede that my language was too strong on that point...however:

- The work is commercial, it is not...by Prince's own statements...designed as parody or commentary on Cariou's work, nor is it a text or educational piece using an appropriate snippet for teaching purposes.
- The "amount and subatantiality" of the appropriated work is vast. 41 works copied in whole or in part and made, in instances, almost the entirety of the piece Prince shows.
- The effect of the use on Cariou's own market was also dealt with in court, a show of his own taken off the table by a gallery as a direct result of Prince's show.

The failure of Prince in this instance to get over the bar of the fair use test is staggering. Frankly, I was amazed at pundits who declared he would win with ease. It's about time that fair use was enforced at this level. And stay away from using Warhol as a defense...he was sued multiple times and at least he was bright enough to settle up before anything ever got to court.

Prince and Company took a ludicrous, arrogant stance and got slapped for it. About damned time.

Re: Re: Re: Re: Re: Re: Fundamental issue with the reasoning here...

You're not really saying that settling out of court is indicative of the merits of the case, are you?

Of course I am saying that settling out of court is a comment on the relative merits of a case.

These were not just nuisance suits (have you researched the topic of Warhol, copyrights, and suits at all or are you now just resorting to verbal sparring without an iota of fact in an attempt, again, to spin away from the actual topic?) and he settled them by surrendering original works. He was hardly unknown at the time, could certainly have mounted aggressive defenses without straining his wallet, and chose instead to settle. Let's not suppose it was due to Andy Warhol not wanting publicity...please.

Of course I am saying that settling out of court is a comment on the relative merits of a case.

That's a ridiculous claim to make. Many lawsuits are settled to avoid the tremendous cost of defending them, not because the suit has merit.

These were not just nuisance suits

Those particular suits may have been completely meritorious. But the fact that they were settled in no way proves that. I'm not saying they were nuisance cases, because I haven't looked into it and I don't have any reason to believe they were. All I'm saying is it's foolish to assume they were strong cases simply because Warhol settled.

That's a ridiculous claim to make. Many lawsuits are settled to avoid the tremendous cost of defending them, not because the suit has merit.

It's hardly a ridiculous claim to make nasch, and you saying it certainly doesn't make it so. Warhol was certainly not in that category of people at the time who would have needed to worry about the costs of mounting a defense and defending against a completely frivolous lawsuit...having it tossed as such...would have made the statement that there was nothing there. It wasn't done, it leads to a public perception that there was something to the suits.

Let's just go for the obvious here; that Warhol settled those suits has kept alive the notion and perception that he willfully infringed for over 45 years.

And for the record, since you seem to prefer the nits over the actual topic, nowhere in my comments did I say the cases against Warhol were strong. They were sufficient to not be dismissed as frivolous without mounting a defense against them, and they were of sufficient merit to make settling them out of court a worthy goal.

You may not think you would not defend yourself against a lawsuit that publicly states your work belongs to someone else and that what you've publicly claimed as yours is theirs...but I'm going to go out on a limb here and say that since it's never happened to you have absolutely no idea what you would do.

All you seem to have to say is opinion-based...and you keep spinning from one thing to pick at me over to the next. I suspect you're one of the people on the net who just want to argue...the topic doesn't matter, if there's a nit to pick you'll pick it...and not worry at all that you are completely ignorant of the actual topic.

It's hardly a ridiculous claim to make nasch, and you saying it certainly doesn't make it so.

And your saying it's not ridiculous doesn't make it so. So we're back to arguing on the merits.

Warhol was certainly not in that category of people at the time who would have needed to worry about the costs of mounting a defense and defending against a completely frivolous lawsuit.

That's right, which lends more credence to the position that the suits had merit.

Let's just go for the obvious here; that Warhol settled those suits has kept alive the notion and perception that he willfully infringed for over 45 years.

Certainly, and this is something copyright and patent holders rely on often.

And for the record, since you seem to prefer the nits over the actual topic, nowhere in my comments did I say the cases against Warhol were strong.

Hey what do you know, nowehere did I say they were weak! It's almost like that's not what we're talking about! ;-)

They were sufficient to not be dismissed as frivolous without mounting a defense against them

Maybe I'm missing something, but how do you get a frivolous suit dismissed without mounting a defense?

they were of sufficient merit to make settling them out of court a worthy goal.

This is just repeating the same claim again. You're saying that settling out of court implies something about the merit of the case. It does not. It is quite possible for someone to make a cost-benefit analysis and decide it's better to settle without even considering the merit of the case. And it happens a lot.

You may not think you would not defend yourself against a lawsuit that publicly states your work belongs to someone else and that what you've publicly claimed as yours is theirs.

Why do you even bring this up? I never said anything about what I would do, or even what someone else should do.

All you seem to have to say is opinion-based.

Are you saying my factual claim that it's a common occurrance for people to settle lawsuits without regard to their merit is false? Because you're living in denial if you are.

I suspect you're one of the people on the net who just want to argue.

I do like to argue, but you're slipping into ad hominem territory here. Besides which, it takes two to argue. If the "nit" is not worth arguing about, why are you doing it?

Oh by the way...

As I've had the common courtesy to acknowledge where I overstated my position relative to the commercial element as a test of fair use, you might at least have the courtesy to acknowledge that you were/are wrong about the synonymous relationship between intent and purpose.

I might be expecting too much, but I do expect some measure of civility...even between people who publicly come down on two sides of an issue as emotion-filled as this one has proven to be in the art community.

Citations, lawyers, anybody?

Mike,

I would have assumed that the guy who runs the place and who tells me to go the "numerous blue links" you say point to lawyers explaining why this case will be overturned on appeal would have at least followed one of them to see if in fact there was a lawyer at the other end saying "The judge erred in application of the law here, here, and here...and the case will be overturned on appeal for that reason."

I've just gone through the thread again, in its entirety, and there is not a single lawyer in it or its links supporting your "The judge here was wrong. Very wrong. And many lawyers all seem to agree that the ruling will likely be overturned on appeal." comment. I'll ask again for you to cite references to back up your claim, or withdraw it.

Re: Re: Re: Fundamental issue with the reasoning here...

In addition to Mike's response, I will just state I'm extremely skeptical of anything anyone says who still calls copyright infringement theft. It suggests you are either misinformed, willfully ignorant, or pursuing an agenda on this topic.

Re: Re: Re: Re: Fundamental issue with the reasoning here...

@nasch

Taking something that doesn't belong to you is...what? We can fancy up the language all we want but when Prince himself states in interviews that he steals work, and when T.S Elliot's quotes concerning theft are used as defenses for appropriation, I feel no compunction about using the term myself.

I think harping on the use of that word is a rather thin deflection away from the actual topic though, isn't it? Of course I have an agenda, I agree with the ruling and am defending it. No different than someone who vehemently disagrees with the outcome continuing to call the use of the images "fair" after a court has decided otherwise.

Excellent point...

Besides which, it takes two to argue. If the "nit" is not worth arguing about, why are you doing it?

The first comment you've made in this dialogue that I wholeheartedly support. This series of tangential little back and forths is not what I came to this forum to discuss, it's not relevant to the topic, and it's unlikely to ever enlighten either of us or cause either of us to modify an opinion.

As we (Mike included) have never even managed to put the "Purpose equals Intent" discussion to bed, let alone continue a meaningful discussion on the issue of "Cariou v Prince, et al" and it's impact on the art world, I don't see any reason to continue on here.